The Right's supremely flawed opening argument against Sotomayor

President Obama could have nominated just about anyone to fill Justice David Souter's seat on the Supreme Court, and the conservative movement would have reacted just as they have to his nomination of Judge Sonia Sotomayor.

President Obama could have nominated just about anyone to fill Justice David Souter's seat on the Supreme Court, and the conservative movement would have reacted just as they have to his nomination of Judge Sonia Sotomayor.

Don't take my word for it. The Right made its intention to oppose Obama's nominee -- no matter who it was -- abundantly clear in the weeks leading up to the president's selection. They see the nomination process not so much as a necessary function of our democracy but as an opportunity to, in part, "help refill depleted coffers and galvanize a movement demoralized by Republican electoral defeats"; "build the conservative movement"; and "prepare the great debate with a view toward Senate elections in 2010 and the presidency."

Worse than its conviction of the president's nominee for high crimes against conservatism -- before there's even been a trial -- is the convoluted "evidence" media conservatives have presented to the American people as part of its opening argument against Judge Sotomayor.

By now you've no doubt heard Exhibit A -- Sotomayor's February 2005 comment at a Duke University School of Law forum that the "court of appeals is where policy is made." This, they claim, proves that Sotomayor would be little more than an evil activist jurist on the bench. Her words -- taken out of contexttime and again by conservative and mainstream media outlets -- make clear that Sotomayor was simply explaining the difference between district courts and appeals courts. Her comments were in sync with the Oxford Companion to the Supreme Court of the United States' explanation of the federal appellate court's "policy making" role. That's a view even conservative legal god Antonin Scalia seems to share and even go beyond, having articulated the "policy making" role of the courts himself and noting that "the judges of inferior courts often 'make law.' "

For Exhibit B, we find media conservatives in a huff over not only Obama's stated intention to nominate someone possessing "empathy" among other qualifications but also Sotomayor's 2001 comment that a "wise Latina woman" might bring a little something extra to the bench in adjudicating race and sex discrimination cases. Conservatives in the media leapt at the president's "empathy" comment, typically portraying it as proof of Obama's intention to nominate a liberal activist to the Supreme Court rather than a jurist committed to the Constitution, even though the president said that his nominee would demonstrate both.

Equally disjointed has been the Right's reaction to Sotomayor's "wise Latina" comment, as numerous conservatives in the media have savaged her as a racist and a bigot. Radio talker Rush Limbaugh, de facto leader of the conservative movement, said of Sotomayor, "So here you have a racist. You might -- you might want to soften that, and you might want to say a reverse racist. ... Obama is the greatest living example of a reverse racist, and now he's appointed one." Marching in lockstep with El Rushbo, Fox News crazy man Glenn Beck said Sotomayor's comment "smacks of racism" and is "one of the most outrageous racist remarks I've heard," adding the following day on his radio show his assessment that "I think she's a racist. I think she has decided things based on race." Never one to skip an opportunity to slight a person of Hispanic descent, CNN host Lou Dobbs called Sotomayor's comment "racist," describing her nomination as "pure, pure absolute pandering to the Hispanics, and, you know, filling in the box on one more minority."

MSNBC's Ed Schultz had it right when he said that conservatives were suffering from a case of "selective amnesia" when it comes to the importance of judicial empathy -- lest we forget, then-President George H.W. Bush cited Clarence Thomas' "great empathy" when announcing his selection of Thomas to serve on the Supreme Court, and the words of Thomas during his confirmation hearing; responding to the question of why he "want[ed] this job," Thomas said in part: "I believe ... that I can make a contribution, that I can bring something different to the court, that I can walk in the shoes of the people who are affected by what the court does."

As if its willfully misleading and downright incendiary attacks weren't enough, in exhibits C and D we find media conservatives attacking Sotomayor's effectiveness as a jurist as well as the summa cum laude Princeton grad and Yale University law review editor's intellect. Take this gem from The Washington Times, for example. The conservative rag uncritically quoted Wendy Wright, president of the right-wing fringe group Conservative Women for America, saying that Sotomayor's reversals -- which the Times reported as three of five cases, or 60 percent -- were "high." Would it have been too hard for the Times to note that since 2004 the Supreme Court has reversed more than 60 percent of all federal appeals court cases it considered each year? Perhaps it would have been too much effort for the Times to let its readers know that conservative darling Samuel Alito had his share of decisions reversed by the Supreme Court prior to his confirmation.

If this is the Right's idea of an opening argument, one can only assume how equally misleading and disingenuous its trial of Sotomayor will be. The media should do a better job of shooting down these demonstrably false attacks rather than perpetuating them as one side of a he-said-she-said debate.

What we need are a few good courtroom reporters. After all, if coverage thus far is any indication, we've already got plenty of stenographers.

Karl Frisch is a Senior Fellow atMedia Matters for America, a progressive media watchdog, research, and information center based in Washington, D.C. Frisch also contributes to County Fair, a media blog featuring links to progressive media criticism from around the Web as well as original commentary. You can follow him on Twitter and Facebook or sign up to receive his columns by email.

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